Married to your business Twitter or Facebook account? Think before you say, I sue

About a year ago, I was asked to testify as an expert witness in a celebrity case where the celebrity in question had Tweeted a negative assessment of a particular service provider. The service provider sued claiming that the said Tweet caused significant damage to their reputation, which ultimately contributed to an unrecoverable loss in overall sales. I turned down the opportunity because in my research, I couldn’t substantiate with confidence that the Tweet caused the amount of stated damages…or anywhere close to it. Naturally, that made my testimony undesirable by the attorneys representing their service provider client. The celebrity eventually lost the case and as a result, paid a hefty sum. This case now serves as precedent for any and all case that will emerge as people seek restitution against potentially damaging status updates.

Ever since that suit, I often think about the value of a Tweet, its reach, and ultimately the worth of an account and its followers. The same is true for any social media account. In recent news, there is a developing case that is prompting me to rethink value once again as well as the importance of putting into place measures for responsible social media communication and overall management.

The situation this time around involves PhoneDog, a popular interactive mobile news and reviews resource, and a former employee by the name of Noah Kravitz. Before leaving the organization, Kravitz helped bring the organization onto Twitter, creating an account with the company name in his handle. @PhoneDog_Noah was an account he created on his own accord to engage with customers and promote the company. He also used the account for personal interaction. Upon his departure, Noah states that he informed management that he would be taking the Twitter account with him and changing the name from @PhoneDog_Noah to @NoahKravitz. Now, according to his side of the story, his management was more than fine with this change. As he asserts, his management casually asked for him to update the account with PhoneDog related information “every now and then.” I should also point out that the @PhoneDog account remains in the possession of the business.

Now, either in a turn of the tides or simply protecting what it believed it owned all along, PhoneDog is suing Noah Kravitz for $170,000 in damages it claims were caused by Kravitz not turning over the account. That’s $2.50 for every one of the account’s 17,000 followers for the 4 months Kravitz has not transferred back account management to the PhoneDog team.

This is a good moment for pause and reflection.

$170,000 is not a trivial amount. Noah most likely does not possess the means to pay these damages should he lose. In a recent interview, he projected only the utmost confidence that he was in the right and that he believes this case has no merit. He states that his employer was not interested in the account at his time of departure and because he made it a point of conversation during his exit, that he pursued reasonable measures to communicate his intentions.

More importantly, $2.50 is on the block to become a precedent in the assignment of value to Twitter followers. It’s a number that’s difficult to fathom as it’s practically arbitrary.

So who’s right in this case? Noah? His employer?

They say possession in nine-tenths of the law. In this case, it comes down to intention. We do know that Noah created the account with good intentions. But he did create the account to help his employer earn relevance in a new and important media channel. Chances are that he managed the account and grew its following during business hours, which can be considered an “invention” during his course of employment. As a result, this can be considered property of the organization because they have a vested interest in its development and Noah was compensated for his time.

In Noah’s defense, he claimed that he presented his intentions to take the account to management and received the blessing to take official ownership of the account. This can represent a form of negotiation that protects Noah from damages. He did not however, receive this approval in writing and as such, all impressions and statements are challengeable.

Another angle to examine here is that of the Twitter followers in question. Do they remain loyal to Noah or to PhoneDog? Using an automated engagement platform such as PeopleBrowsr, all 17,000 followers can be asked via DM whether they would like to remain a follower of Noah’s, unfollow Noah and now follow @PhoneDog or follow both.

When British TV journalist Laura Kuenssberg changed stations from the BBC to ITV, she struck a deal that allowed her to take her 60,000 followers. Her last BBC tweet read, “@ITVLauraK Laura Kuenssberg Thanks you for all your messages excellent followers! My last tweet as @BBCLauraK – shortly to become @ITVLauraK.”

While the results of this case will play out in either court or arbitration, businesses and employees should take this time to communicate intentions and expectations. Additionally, companies should invest in the development of clear policies, guidelines, and compliance processes and systems to protect employees and intellectual property (IP).

If we look at email as precedent, it’s largely understood that the email account and all communication remains company property when an employee leaves. The contacts made during employment are exportable. But, businesses already possess proven rules that govern the engagement of employees and past employees in regards to how contacts can be engaged post employment, how, and for what duration. For example, a sales person is typically not allowed to make contact with business clients during a fixed period of a year or longer.

There’s one other angle to review here and it is worthy of serious consideration and ultimately new internal rules and procedures. If we use Noah Kravitz as an example, at some point he will join a new company and start a new career. With his 17,000 Twitter followers, Kravitz boasts a notable personal brand. This brand can be of great value to the organization of course, but it is his brand to cultivate. Additionally, Noah would need to treat his personal brand and any presences that he manages as an employee-owned carve out. In his HR file, it would then be noted that these accounts are his personal assets. However, businesses must now consider policies, rules, and procedures for managing a personal brand without disrupting the employees role, focus, or the employer’s brand.

I took a moment to speak with Joe Chernov, VP of Content Marketing for Eloqua (an Altimeter Group client). He believes that communication and regulation are key, “I am concerned both as the architect of my employer’s social strategy and as a hiring manager. The two questions on my mind are Will an eventual decision require me to forfeit my personal following? And, how can I ensure the organization maintains rights to relevant follower lists should we onboard additional social media personnel? The battleground for employees and employers alike may shift to employment offer negotiations, when each party has an opportunity to assert rights to intellectual property. Employers may wish to add specific language requiring that all social media handles, followings and content be transferred completely and exclusively to the Company. Meanwhile employees interested in developing and protecting their own “brands” might push back against the same with specific exclusionary language to ensure they may take their tweets with them upon termination. Of course, these battlegrounds can often be avoided by thoughtful dialogue.”

Social media is new and at the same time the laws that should govern account management, customer engagement, and community development are already established.

Like in any customer or employee facing account, the rules of engagement must be defined, articulated, and accepted. Additionally, these rules of engagement should be observed through compliance practices to ensure brand integrity and employee performance through training, improvement and also reward.

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  • http://jchernov.posterous.com Joe Chernov

    Congrats, Brian, on doing something that is remarkably difficult to do: Take a story that has been covered extensively, yet articulate a fresh and informative perspective. Fantastic post and insights. Thanks for letting me be part of it. -Joe Chernov / Eloqua / @jchernov:disqus 

  • http://twitter.com/gpraysman Gerry Praysman

    Great post, Brian. I have to say that I find this case to be ridiculous and a bad turn for social media.

    From my limited law knowledge, it seems like the company is trying to protect a list of clients in the form of Twitter followers (although clearly not all of his followers are the firm’s clients). You can’t protect client lists unless they’re trade secrets. In the case of Twitter, followings are entirely public, so they don’t qualify.

    The real question is, if he were to give up his following and create a new account, but all of his previous followers came back to him out of their own volition, would he have to create a new account again? Will he be forbidden to use Twitter? Come on.

    Regardless of the outcome, this case is a brick in the wall between social media and company gains. Employees have the power to leverage social media in some really powerful ways to help their company, as evidenced here as well. It’s a speed bump to getting a company-wide effort to effectively promote the brand.

  • http://website-in-a-weekend.net/ Dave Doolin

    While this is really interesting on many levels, the most interesting one for me is the BBC situation.

    BBC, apparently, is smart enough to understand that people were following Laura Kuenssberg, not BBC.

    I find this encouraging. 

    Thank you for digging into this, Brian.

    • Andrew

      The Laura Kuenssberg situation is interesting. I followed her as @BBCLauraK because I wanted to know what she was saying – based on her job as a journalist in the BBC.  On reflection I was actually following @BBCjournalist not actually Laura Kuenssberg.  So, when she moved I continued to follow her as @ITVLauraK  but again I’m actually wanting the information from @ITVjournalist.  
      Would some of the potential conflict areas be avoided if corporate twitter accounts were used as jobnames rather than as people names?    This does of course take away some of the personal/personality aspects of social media and twitter in particular – but it may save on legal fees. 

  • http://www.mojo40.com/ Diane Dolinsky-Pickar

    This is a fascinating post and I thank you, Brian, for so coherently digging into the issue. In fact, I write a blog for the over 40 cohort, and I think that I spot an opportunity… that I had previously not thought about, for some of the downsized and underemployed folks among my readers. While I know that there are new internet jobs like Community Manager and Social Reputation Manager and even Social Innovation Manager due to the explosion in customer-facing social media–as well as social collaboration tools within enterprises (eliminating everything from datacenters and Webex communications to intranets)–some of those unemployed lawyers might do well to focus upon, and specialize in, Social Media Law. Now, wouldn’t that be a most excellent strategy!

  • http://www.fivedoesit.com/ FiveDoesIT

    Excellent info regarding whether or not someone could be sued for a negative comment about a company. 

    As the ceo of Five Does IT, a global micro jobs site which buyers can give positive comments on or negative comments based upon their personal experience with a seller. Although an personal opinion can be right it could also be subjective so I believe that as the global marketplace matures most people will have gained enough insight that they begin to view opinions of others with a broader perspective.

  • Kparedes

    Brian another great article.

    Question – I read or follow certain writers (take yourself for ex.) because you have a perspective, style,vision etc. that I believe delivers some real intellectual value. How much of “you” should be owned by “the company”??…the legal arguements either side may be interesting but the audience will follow the “thought leader”. When my favorite ballplayer went to a new team – I still rooted for his success maybe not the team but – well you get the point. The ballplayer’s jersey and all the licensing agreements can be worked out by the suits. His fans will make up their own minds as to root or not to root… CEO’s and HR have a point of view – but the person’s following (fan base) will probably trump the company’s line…

    -jus saying  

  • http://iantruscott.me Ian Truscott

    Great post Brian. 

    A thought provoking article and an absolute must read for anyone defining their social media strategy. These issues illustrate the maturity of social, it is a business imperative – and with the comparison with email, a part of the part of the fabric of our business communications. You mention the value of 17k followers to a future employer – I wonder whether (or maybe when) we can put a dollar value on that. Is it $170k? Cheers, @iantruscott   

  • http://twitter.com/JennTelligent Jenn Emerson

    I think the industry should think seriously about the Noah Kravitz case. If he loses and the policy standard among companies becomes corporate ownership of all social network accounts where an employee is touting a company, then many if not all employees will be de-motivated to tweet or post on behalf of their company. Wow, that was a long sentence. But, I think you know what I am saying. (I think.)

    • Anonymous

      I would have firmly disagree because if you are hired by company (and jobs are scarce) the company if stated in their policies all patents, all advertising (social or otherwise) is the property of the company then the employee must sign and agree to those polices to get hired. In other words it is a legal and binding contract.

      Business is about trading value for money whether it sells services or products. And with that come contracts and rules to play by. If you are fortunate enough to be hired by a company and agree to their policies then you cannot expect to go against what you have agreed upon and believe you are right.

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  • Abby Glenn

    Thank you for your post.  It was very interesting for me to read as I am currently working on my masters in communication while having a special interest in social media. 

    I honestly had no idea that there was such a “buzz” over who controlled the intellectual property rights of a social media site.  But, after doing so research, it’s clear that Noah’s case is not the only hot topic regarding intellectual property rights of social media accounts.

    Regardless of the power and value of sharing messages through Twitter, I find it absurd
    that the company is suing Noah for $170,000. Nancy Messieh has an article that references the website, TweetValue, that can tell you what a Twitter account is “worth”.  It takes into account how many followers a Twitter account has to apply a supposed value to the account.  As Nancy states, “According to TweetValue, by the way, Kravitz’s Twitter account is worth $4,831.”  According to TweetValue, Barack Obama has a Twitter “value” of $134,085, which is well below PhoneDog’s assessed damages and TweetValue’s assessment of PhoneDog’s Twitter
    account.   While I realize that this lawsuit is allowing PhoneDog and Noah to receive significant attention and therefore may raise the company’s and Noah’s notoriety, I still believe that
    Barack Obama has a much higher Twitter “value”. Nancy also notes that “since June, Kravitz’s
    follower count has increased by almost 2,500 followers, in all irony, quite possibly in part due to the buzz created by PhoneDog’s lawsuit.”

    One of the text’s I’m reading for my Communication Ethics class references “goods” as being the “valued center of a given communication ethic, what is most important and held in highest regard finds protection and promotion in our communicative practices” (Arnett et al., 2008, p. 3). The text further explains, “each underlying good produces and shapes a unique communication ethic” (p. 28).  Considering Noah spoke with management at PhoneDog before his departure regarding retaining the current
    Twitter handle, I do not believe PhoneDog has the right to sue for such an absurd amount of damages.  While there is no evidence of Noah’s conversation with management, it appears that he acted
    ethically by following the steps he arranged with management at PhoneDog.  I believe that social media regulations will soon become a highly regarded “good” for communication ethics.

    From the research I’ve been able to do, it appears as if PhoneDog does not have a
    current policy in place regarding social media accounts.  Your blog post references email as a
    precedent to base potential rules regarding who owns a social media account,
    the company or an employee.  I agree that policies regarding email could be an easy basis of social media policies.  I also agree that companies need to take the initiative to develop social media policies that, as you mention, “must be defined, articulated, and accepted.”

    Once again, thank you for your post! And, good luck to Noah!

    Arnett, Ronald c., Fritz, Janie M. Harden, & Bell, Leeanne M.. (2009). Communication Ethics Literacy, Dialogue and Difference. London, SAGE Publications, Inc.

  • Scott Allen

    Yet another reason never to work for anybody else.

  • http://twitter.com/marketingmiker Michael Rudd

    Great post Brian.  I think one thing employees need to think about in the future is creating a personal brand for themselves.  My blog and my twitter name (@marketingmiker) focus on growing my personal brand no matter where I work I can take this with me.  That way my employee can’t take it from me I choose to switch.  Very interesting though and it will come up again and again I am sure.

  • Anonymous

    It takes a long time to build credibility. And a moment to destroy it.

    After all your talk about the End of Business as Usual you quote the Lord Voldemort of Spam himself, Joe Chernov. Eloqua was the ultimate encapsulation of the old interruption marketing, inventing a way to spam people without even being there at the time. They came up with a whole host of mythical justifications for this such as nurturing – timely information for a rigid buying steps process which no-one goes through, lead scoring – where opening a white paper buys you a sales call.

    The techniques pioneered by Eloqua are the main reason why people have turned to social networks. Marketing Automation became the new “Cold Calling”.

    Clever buyers have thus been forced to find a way round. They have been
    driven to distraction by people assuming they want to buy just because
    they downloaded a white paper – Kenny Madden calls it “Download your own
    sales call”. They’ve been forced to create false identities just to
    research because of web visitor tracking being used as retargeting.
    They’ve been forced to avoid anything from a vendor because they know it
    will lead to persistent emails for months.

    They’ve ended up mistrusting everything a vendor produces. Hence the
    growth in social networking.Eloqua has blood on its hands and is part of the problem, not part of the solution.

  • http://www.facebook.com/helisirkia Heli Sirkiä

    Excellent post in many ways! 

    You brought up the issue that I have been wondering from HR and legal perspective – who owns the assets of a personal brand vs. employer brand? I am wondering how much country specific legal differences influence this?  Using PeopleBrowsr to ask followers whom they prefer to follow was also a great tip, thank you! 

    • http://www.briansolis.com/ briansolis

      Thank you Heli!

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  • http://www.shaneatkins.co.uk Shane

    Thanks for this excellent post

  • http://igtsoft.com David Wong

    I saw a news segment on TV talking about the problems with employees leaving companies but retaining the previously created social media assets. It is a complicated legal area but I would think the company should retain the rights to company assets. I’m not saying this is right or wrong, only that the law is in place for companies to own the assets created by employees, including requiring employees to sign employment documents to that effect.

  • http://twitter.com/LyNNPRmentaLity Lynn Walker

    Wow. Interesting. Things like this are always tricky. Especially since there aren’t really any media laws in place in regards to social media. If Noah agreed to change the account so that it no longer had any affiliation with the company, I don’t think there should be an issue. But, to avoid problems such as this, perhaps it would have been better for him to leave the account with the company and create another for personal use. That way, there are no hard feelings or lawsuits for $170,000 for that matter

  • http://www.smallscalebusiness.com/ Ben

    Sometimes, it’s hard to know where to draw the line in giving out your personal opinion or speaking objectively as a journalist.

  • http://www.socialmediamarketingmall.com/google-1-followers Google Followers

    In this case scenario, obviously the company are seeing their followers as active buyers which is not quite true. Well, maybe some of it but not entirely. I presume most of it are persons which had a great interact with Noah. As a twitter user myself, I follow brands not because I liked all of them, it is because there are persons who attract me to follow it. As for Noah, he possessed this charisma or he has this great sociable skills which deserves him to earn those 17,000 followers as mentioned by you in this blog. And that number of followers are not a piece of cake to earn, not unless you’re a celebrity. Well of course, taking into account that we make business to earn money, it was normal for the company to act that way. Great post. This is something worth reading.

ABOUT ME

Brian Solis is a digital analyst, anthropologist, and also a futurist. In his work at Altimeter Group, Solis studies the effects of disruptive technology on business and society. He is an avid keynote speaker and award-winning author who is globally recognized as one of the most prominent thought leaders in digital transformation.

His most recent book, What's the Future of Business: Changing the Way Businesses Create Experiences (WTF), explores the landscape of connected consumerism and how business and customer relationships unfold in four distinct moments of truth. His previous book, The End of Business as Usual, explores the emergence of Generation-C, a new generation of customers and employees and how businesses must adapt to reach them. In 2009, Solis released Engage, which is regarded as the industry reference guide for businesses to market, sell and service in the social web.

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